Phepeng and Another v Estate Late Ame Combrinck and Others (792/2017) [2017] ZAFSHC 54; 2017 (4) SA 266 (FB) (23 March 2017)

Phepeng and Another v Estate Late Ame Combrinck and Others (792/2017) [2017] ZAFSHC 54; 2017 (4) SA 266 (FB) (23 March 2017)

The court found that the suspensive condition in the contract was included for the protection of the purchasers, who were satisfied with the ABSA Bank loan offer and accepted it within the required period. The wording of the condition did not require the seller to be supplied with the loan documentation, only the purchaser. The purchasers effectively waived any further requirements by accepting the loan offer, thereby perfecting the contract. Respondents failed to give notice of non-compliance as required by clause 19, and their subsequent cancellation was invalid. The contract thus came into full force and effect, entitling Applicants to transfer of the property and a final interdict.

Citation
[2017] ZAFSHC 54
Parties
Applicant: Bradley Thato Phepeng; Applicant: Rethabile Patently Phepeng; Respondent: Estate Late Ame Combrinck; Respondent: Steyn Meyer Attorneys; Respondent: Registrar of Deeds; Respondent: Master of the High Court
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 March 2017
Case Number
792/2017
Procedural Posture
Urgent Application / Final Order After Confirmation of Rule Nisi
Outcome
Application granted; rule nisi confirmed; Applicants entitled to transfer of the property and costs.
Judges
Nicholson
Legal Topics
Specific Performance, Suspensive Condition, Final Interdict, Contractual Waiver
Land and Property Civil Procedure Specific Performance Suspensive Condition Final Interdict Contractual Waiver

Case Brief

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Parties

Bradley Thato Phepeng

Applicant

Rethabile Patently Phepeng

Applicant

Estate Late Ame Combrinck

Respondent

Steyn Meyer Attorneys

Respondent

Registrar of Deeds

Respondent

Master of the High Court

Respondent

Procedural Posture

Urgent Application / Final Order After Confirmation of Rule Nisi

Legal Issues

  1. 1 Whether the suspensive condition in the sale agreement was fulfilled timeously.
  2. 2 Whether the contract of sale between Applicants and 1st Respondent became enforceable.
  3. 3 Whether Applicants are entitled to transfer of the property and a final interdict.

Ratio Decidendi

The court found that the suspensive condition in the contract was included for the protection of the purchasers, who were satisfied with the ABSA Bank loan offer and accepted it within the required period. The wording of the condition did not require the seller to be supplied with the loan documentation, only the purchaser. The purchasers effectively waived any further requirements by accepting the loan offer, thereby perfecting the contract. Respondents failed to give notice of non-compliance as required by clause 19, and their subsequent cancellation was invalid. The contract thus came into full force and effect, entitling Applicants to transfer of the property and a final interdict.

Court Disposition

Application granted; rule nisi confirmed; Applicants entitled to transfer of the property and costs.

Orders

  • The 1st and 2nd Respondents must transfer Sectional Title no. 2 in SS Okapi (920/1987), situated at [...] L. A., Fauna, Bloemfontein, Free State, into the names of the Applicants within 30 days of this order.
  • The 1st Respondent must pay the costs of the application.